McGeehan, Bigelow and Smalley. The opinion of the court was delivered by McGeehan, S.j.a.d. Smalley, J.s.c. (dissenting).
At the primary election held in Hudson County on April 15, 1952, James F. Murray was duly nominated as the candidate of the Democratic Party for the office of register of deeds and mortgages. James F. Murray died on September 29, 1952. On the following day, September 30, 1952, the Hudson County Democratic County Committee selected William L. Johnston as the candidate of the Democratic Party for such office to fill the vacancy caused by the death of James F. Murray; and on the same day, the said county committee filed a statement of such selection with the county clerk. Both Charles P. Kilmurray and John J. Kijewski are voters and citizens of Hudson County and candidates for the same office; Kilmurray was nominated at the primary election as the candidate of the Republican Party and Kijewski was nominated by direct petition under the designation "The People's Choice."
On October 1, 1952, Kilmurray and Kijewski, as plaintiffs, filed a civil action in lieu of prerogative writ in the Superior Court, Law Division, Hudson County, in which they sought to set aside the action of the county clerk in accepting for filing the statement of the Hudson County Democratic County Committee certifying the selection of William L. Johnston as the candidate to fill the vacancy caused by the
death of James F. Murray and a restraint against the printing of any ballots containing the name of William L. Johnston substituted for the name of James F. Murray. There being no genuine issue as to any material fact, plaintiffs and defendants each moved for summary judgment as a matter of law. On October 7, 1952, judgment was entered in favor of the defendants, and the plaintiffs appeal. It is conceded that no general election ballots have yet been printed and that the county clerk can make the substitution in compliance with the statement filed by the county committee, if it is valid.
At the outset we are met with the contention of the defendants that this appeal, as the appeal in In re Recheck of Voting Machines , 19 N.J. Super. 187 (App. Div. 1952), should be dismissed because the Appellate Division lacks jurisdiction. In the Recheck of Voting Machines case, the judge of the Law Division of the Superior Court, in deciding the validity of the ballots there involved, acted under a statutory jurisdiction conferred upon such judges by R.S. 19:28-1 et seq. , and we there held (as required by the decision of our Supreme Court in Bergen County Sewer Authority v. Little Ferry , 5 N.J. 548 (1950)) that review of the action of such a judge, sitting as a designated legislative agent, when permitted, must be had in the Law Division of the Superior Court under Rule 3:81-2 and cannot be had in the Appellate Division on an appeal taken as a proceeding in lieu of prerogative writ. The proceeding now on appeal was brought before the Superior Court, Law Division, not pursuant to a statutory jurisdiction conferred upon such court, or a judge thereof, but rather as a proceeding in lieu of prerogative writ for the review of the acts of a public official, for which no other method of review is provided. Cf. Introcaso v. Burke , 3 N.J. Super. 276 (Law Div. 1949). The Appellate Division has jurisdiction of an appeal from a judgment entered in such a case.
The defendants also argue that the plaintiffs were improper parties and had no standing to bring the action
in the trial court. The action was one to force a public official to comply with the provisions of a statute governing his responsibility in the conduct of the general election. The plaintiffs are citizens and qualified voters in Hudson County and, as such, have a standing to bring such a suit. MacManus v. Allan , 2 N.J. Super. 557 (Law Div. 1949).
When a vacancy among candidates nominated at the primary election is created by the death of a nominee before the general election, the only authority for the selection of a candidate to fill such vacancy, and for the substitution of his name on the general election ballot for the name of the deceased candidate, is to be found in R.S. 19:13-18 and R.S. 19:13-20 (as amended L. 1949, c. 24, § 4), which in pertinent part provide:
"19:13-18. In general. When a person so declines his nomination, or if a petition or certificate of nomination, or if any nomination, be insufficient or inoperative, or if a nominee shall die, or for any reason vacate his nomination, the vacancy so occasioned may be filled in the manner outlined in the succeeding sections."
"19:13-20. In the event of a vacancy, howsoever caused, among candidates nominated at primaries, which vacancy shall occur not later than thirty-seven days before the general election * * * a candidate shall be selected in the following manner: * * * in case of an office to be filled by the voters of an entire county * * * the candidate shall be selected by the county committee of such political party within the county * * *. The selection shall be made no later than thirty-four days prior to the general election, and a statement of the selection shall be filed as follows: * * * the county committee * * * with the county clerk. Such statement shall not be filed later than thirty-four days prior to the general election * * *. The person so selected shall be the candidate of the party for such office at the ensuing general election."
The general election in 1952 will be held on November 4. Therefore, a vacancy which occurred on or before Sunday, September 28, 1952, occurred "not later than thirty-seven days before the general election"; a selection of the candidate by the county committee made on or before Wednesday, October 1, 1952, was "made no later than thirty-four days prior to the general election"; and a statement of such selection filed with the county clerk on or before October 1,
1952, meets the requirement that "such statement shall not be filed later than thirty-four days prior to the general election." Berry v. Gates , 129 N.J.L. 1 (Sup. Ct. 1942); Stroud v. Consumer's Water Co. , 56 N.J.L. 422 (Sup. Ct. 1893); Barron v. Green , 13 N.J. Super. 483 (Law Div. 1951).
It is conceded that the selection of the candidate by the county committee was made and the statement of such selection filed within the time permitted by the statute. The plaintiffs contend that neither the selection nor the filing of the statement can be legally effective, because the death of candidate Murray, and thus the vacancy, occurred later than Sunday, September 28, namely, on Monday, September 29. The defendants argue that the legislative intent was to permit the party committee to fill a vacancy among candidates nominated at the primary election, provided the vacancy occur, the selection be made and the ...